COURT FILE NO.: CR-19-1903
DATE: 2020 11 17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
J. Prenger, for the Crown
- and -
J.G. and B.L.
A. Karapancev and G. Dorsz for J.G.
N. Kelsey for B.L
HEARD: July 24 – August 21, 2020
This decision is subject to a publication ban. Initials of the parties are used so that it maybe published.
REASONS FOR JUDGMENT
BARNES J.
INTRODUCTION
[1] J.G. and B.L. face several charges stemming from alleged interactions with the complainant . Count 9 was stayed at the request of the Crown. The trial was by judge alone. J.G. and B.L. are also known by nick names starting with the letters S. and B. respectively. I refer to both defendants by the initials of their given names.
[2] I am thankful to counsel for their thorough and helpful written submissions. I have carefully considered all the evidence and submissions of counsel; however, I only reproduce excerpts of submissions and only refer to the portions of the evidence and submissions necessary to provide context and explain the conclusions I have reached in this trial.
[3] I will first address some preliminary matters and provide a general and analytical summary of some of the evidence. I will then, discuss the applicable legal principles, relevant evidence and render a verdict for each charge on the indictment.
PRELIMINARY MATTERS
Prior Disreputable Conduct
[4] Evidence of prior disreputable conduct of a defendant is in effect extrinsic evidence of disreputable conduct of the defendant. The conduct is extrinsic because it has no connection to the offence, and it is presumptively inadmissible. The danger of admission is it may lead the trier of fact to engage in general propensity reasoning. In effect, that if the defendant has behaved badly in the past, he must be guilty of the offence. There is an exception to the presumption, if the Crown can demonstrate on a balance of probabilities that: 1) the conduct is that of the defendant; 2) it is material to an issue in the trial; 3) it is disreputable conduct; 4) its probative value outweighs its prejudicial effects: R. v J.H., 2006 CanLII 40664 (ON CA), [2006] O.J No. 4832 (Ont.C.A.), at para. 17; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R.. 908, at para 55.
[5] B.L. identified the actual or anticipated testimony from the complainant which constitutes extrinsic disreputable conduct of B.L. as follows:
She smoked marijuana with him;
He had sex with her at J.G.’s command; and
She saw him in possession of J.G.’s firearm.
[6] The Crown submits that this evidence is not extrinsic disreputable conduct. It is an integral part of the case against B.L. on counts 3 and 4 of the indictment. B.L. and J.G. are jointly charged with engaging in the prohibited conduct described in subsection 286.1(2) and subsection 286.3(2) of the Criminal Code. I discuss the essential elements of these offenses later in these reasons.
[7] The Crown’s theory is that B.L. knowingly engaged in the prohibited conduct over the complainant’s work in the sex trade. He did this by acting as J.G.’s quiet enforcer; he used her banking pin to book a hotel room for the complainant’s sex trade activities; he drove the complainant to and from places where she performed sex trade work; he assaulted her by punching her in the eye leaving her with a black eye; and at J.G.’s command, he had sex with her.
[8] All of this conduct was designed to psychologically and physically dominate, control and influence the complainant to participate in the sex trade.
Analysis
[9] Evidence of marihuana use is not evidence of extrinsic disreputable conduct. The fact that the use of marihuana was illegal at the time of the said use is of no moment to the court. This is a judge alone trial. The other conduct is not extrinsic disreputable conduct. As will be apparent under my discussion of the offences, this conduct is an integral part of the Crown’s case against B.L.
[10] Even if the conduct is evidence of extrinsic disreputable conduct, it is relevant; highly probative to a material issue and will not cause general propensity reasoning in this judge alone trial. Therefore, the probative value of the evidence exceedingly outweighs any prejudicial effects.
Phone and Text messages
[11] On August 27, 2018, Detective Constable Rempel arrested J.G. and took possession of the black satchel J.G. was carrying. In the black satchel were 3 phones. On the same date, Detective Constable Rempel placed the phones in the central property locker. The phones were later retrieved by Constable Bravener who took them to the Peel Regional Police digital services. All the phones were analyzed by Detective Constable Sikora who extracted data from the phones.
[12] The data extracted from the phones collectively include the text messages; pictures of the complainant; communications between the complainant and J.G.; communications with the complainant’s sex trade clients; pictures of the complainant and J.G.; sex trade ads – Leo List ads – advertising the complainant’s services in the sex trade. I am satisfied that these three phones were under the possession and control of J.G.
[13] I have carefully considered the content of the relevant data extracted from the phones, however, I only refer to or reproduce excerpts for explanatory and illustrative purposes.
Search of J.G.’s home
[14] J.G. mother O.F. confirmed that J.G. was living in the basement of her home at the time of these allegations. She also confirmed that the police conducted a search of the J.G.’s room in the basement. Constable Turner found a sock containing what he believed to be bullets between a futon and a wall in J.G.’s bedroom. He did not look in the sock, he relied on his experience to conclude the item in the sock were bullets. The said bullets play no role in my analysis of this case.
[15] Detective Constable Wallbank confirmed that he located the complainant’s cineplex uniform with her name tag from the stair case leading to J.G.’s room in the basement.
Myths and Stereotypes
[16] The complainant is white, and the defendants are black. The racial overtones are obvious and must be acknowledged. Racist comments made by the complainant’s mother are illustrative of this fact. In addition, the allegations centre around the complainant’s participation in sex trade work. I acknowledge that there are stereotypes and myths about how genuine complainants of sex offences are expected to act.
[17] As the trier of fact, it is prudent to caution myself to be alert to the dangers of assessing the evidence through the prism of subconscious racial or other bias. Failure to do so will result in an unfair trial and a miscarriage of justice.
SUMMARY AND ANALYSIS OF EVIDENCE
[18] In the summer of 2018, the complainant was 17 years old. Between June 27, 2018 and July 22, 2018, she worked in the sex trade. Her actions left her father J.W. and mother S.M. puzzled, shocked, fearful, concerned and confused.
[19] She said J.G. compelled her to work in the sex trade and B.L. helped him do it. M.W. said her friend M.P. betrayed and abandoned her by introducing her to J.G. and B.L. and encouraging her to work in the sex trade.
[20] It is apparent that though she did not end her sex trade work voluntarily, she regrets working in the sex trade. She has suffered a mental breakdown that required her to be hospitalized and to receive counseling. She has suffered past and ongoing trauma. It is apparent from her testimony that she is a different woman than she was during the incidents she describes. It is also apparent that the events she described were triggering for her.
[21] The complainant’s parents are at a loss to explain the uncharacteristic behaviour of their charismatic daughter. They have accepted her explanation that she engaged in sex trade work because J.G., assisted by B.L. and M.P., made her do it.
[22] The complainant’s circumstances are akin to the circumstance I described in R. v. Briscoe, O.J. No. 2031. This is the circumstance where the criminal justice and treatment intersect, however, unlike in Briscoe, the person suffering the trauma is the complainant and the trauma is caused by her participation in an activity which she regrets rather than from the ravages of a drug addiction.
[23] It is reasonable to expect trauma to affect a witness' perception, memory and ability to observe. These factors do not excuse such testimony from the usual rigors of scrutiny under the adversarial process that is the hallmark of our law. Rather, it provides important context for the assessment of the testimony of the witness who has suffered obvious trauma directly or indirectly from the events she describes.
[24] B.L. and J.G. have elected not to testify as is their right and therefore unlike the complainant, not much is known about their personal circumstances, however, they are entitled to expect, and society expects, this court to hold the Crown to proof of the offences beyond a reasonable doubt. J.G. and B.L. are not required to prove their innocence.
[25] When the complainant was two years old her parents S.M. and J.W. separated. She lived with her father J.W. and her stepmother R.W. in Bradford. She had many friends and was an avid soccer player. She had to stop playing soccer due to a knee injury.
[26] By 2017, her personal relationship with her stepmother had deteriorated. She wanted more freedom. She felt that her father had abdicated major parenting decisions about her life to her stepmother. In October 2018, the complainant had a disagreement with her father and stepmother over her attendance at a Halloween party. This prompted her move to Brampton to live with her mother.
[27] She attended a new high school. M.P. and T. became her new friends. By May 2018, her mother had began to notice changes in her behaviour. Mom and daughter argued about her marihuana use; use of her mother’s car; household chores; sleepovers and curfews. The complainant wanted more freedom and her authoritarian mother was uncompromising. She would push the envelope whenever she could. This left her mother frustrated. Text messages between the complainant and her mother are illustrative of the deteriorating relationship between mother and daughter: She was pulling away and mother was desperately trying to control her until eventually control was effectively lost on July 10, 2018.
[28] The complainant said J.G. assisted by B.L. and M.P. made her start working as a sex trade worker on June 27, 2018. Leo’s list are advertisements for sexual services. Advertisements for sexual services provided by the complainant appeared on the Leo’s list on June 28 and 29, 2018; from July 7 to 12, 2018 and from July 14 to 22, 2018.
June 27, 2018
[29] On June 27, 2018, the complainant and her mother had an argument over the smell of marihuana in her mother’s car. Her mother slapped her and asked her to leave. Her mother confirmed this. The complainant was a rebellious teenager and her mother’s inflexibility only helped fan the flames. She packed some belongings. She explained that her intention was to go to her friend T’s house. She knew that M.P. had stayed at T’s house in the past, so she hoped to also stay there.
[30] Given her stated intention, her next moves are puzzling. She called M.P. and asked for a ride but she never called the person whose home she planned to stay at. Her mother had requested that she leave, thus it was reasonable for her to pack some belongings and leave her mother’s house. In her testimony, her mother explained this was an idle threat borne out of frustration. The complainant went to a Becker’s store nearby to wait for M.P. to pick her up. M.P. kept her waiting for a while.
[31] She lived in Brampton and intended to stay in the city but live in T’s house. Therefore, it is reasonable for her to call a friend in Brampton for a ride instead of one of her friends in Bradford. T lived about 15 minutes away. It is reasonable to expect the complainant to call an uber or other paid transportation. She did not do that.
[32] What is most puzzling is she never called the person she was planning to stay with. This behaviour is not reasonable given her stated intention. The complainant made this decision prior to her allegation of introduction into the sex trade by J.G. later that day. The evidence that she may have called T is evasive. This is before she suffered any trauma and developed the “Molly” personality from her participation in the sex trade. This leads me to conclude that she never intended to stay at T’s house on June 27, 2018. She was not forthcoming to the court on this point. This leads me to question the next sequence of events the complainant describes.
[33] M.P. and B.L. eventually picked her up at the Becker’s store. The complainant said instead of driving her to T’s house as she has requested, B.L. drove past T’s house and went to pick up J.G. She said when she tried to inquire where they were going, M.P. told her not to worry and gestured to her to be quiet. After J.G. had been picked up, M.P. broached the subject of sex trade work and told her that the complainant could just talk to clients if she did not want to have sex with them. This was the first time she had ever met J.G.
[34] According to the complainant at this point, she was confused and overwhelmed. They arrived at the hotel. She said B.L. went to the front desk and J.G. and M.P. helped her with her belongings and took her upstairs to a room. B.L. never came into the room.
[35] M.P. stayed with her and J.G. went away to pick up a vanilla card which she subsequently learned was used to place advertisements for sex services. She said M.P. stayed with her for a short while and left her alone in the Motel 6 room. J.G. returned with the vanilla card. She and J.G. got acquainted. They had consensual sex and had pizza, or it is possible that they had sex before the pizza, she is not sure. The complainant said during the sex or before sex J.G. made a comment that put her off.
[36] Having concluded that the complainant was not truthful on her destination and purpose when she left her mother’s house, I cannot accept her description of the sequence of events. I conclude that she called M.P. and not T because she never intended to go to T’s house. She intended to begin work as a sex trade worker. M.P. and B.L. were going to help make it happen and J.G. was going to set up and manage her business. The reasons for my conclusion will become more apparent as I analyse the evidence further.
The unexpected first client
[37] The complainant said after sex with J.G. and at J.G.’s request, she began to show J.G. nude pictures of herself on her phone. At some point, J.G. sent nude pictures of her to himself on Snapchat. She said at some point, there was a knock on the door. It was a client. She was not expecting a client. She refused to open the door or to have sex with the client. She said J.G. told her she had to.
[38] The complainant said she opened the door and let the client in. She tried to talk to the client, but the client had other ideas. She said the client essentially raped her. She said that this event had a traumatic effect and after this event she was “in it”. She lost herself. I specifically reject this. I have found that entering the sex trade was her intention.
[39] The complainant had already began to flex her desire for independence before she left her father’s home. Her desire for more independence was heightened when she moved to her mother’s home. At trial, she testified that at some point she came to know that T had worked for J.G. in the sex trade previously. M.P. had previously told her that J.G. was dangerous, and he had some girls. The complainant said she did not realise that M.P. was making reference to girls working for J.G. in the sex trade. She assumed that M.P. meant J.G. had many girlfriends. When viewed in context of my previous findings, I find this explanation to be untrue and simply convenient.
[40] The complainant knew that M.P. was referring to J.G. managing girls in the sex trade. What is unclear is whether the complainant was persuaded to enter the sex trade or whether she requested to enter the sex trade to make some additional money. What is clear is that she asked M.P. for a ride on June 27, 2018 with the intent of commencing work in the sex trade. Although, I have made reference to J.G. alleged previous participation in the sex trade as part of an analysis of the complainant’s state of mind, this testimony is not relevant to any assessment of whether either J.G. or B.L. are guilty of these charges.
[41] In addition, the Leo List listings reveal a pattern. For the most part, the complainant did sex trade work on days when a Leo List advertisement was posted. On June 27, 2018, there was no Leo List advertisement posted. On June 28, 2018, a Leo List advertisement was posted. This fact, when viewed in the context of other previous factual findings, lead me to conclude the complainant’s first foray into the sex trade occurred on June 28, 2018 and not on June 27, 2018 as she testified.
[42] She said she and J.G. talked about the content of the advertisements although she never saw them. She and J.G. discussed the name she should use in the advertisements. She suggested Molly. This was the name used in the advertisements. She said J.G. knew she was Portuguese, and he put Portuguese in the advertisement. He described her age as 20 years. In chief, she testified that she told J.G. about her age, in cross-examination she modified this and said she did not recall if she did.
[43] According to the complainant, J.G. made her become a sex trade worker. He arranged the clients and told her to make sure she collected the money. J.G. decided that money was to be split equally between him and her.
[44] J.G. would post the ads and arrange the clients. Sometimes J.G. will lower the price and if it was something she did not want to do she would raise the price.
[45] She said she and J.G. developed a system for the money collected. She will place the money collected in a bible. On one occasion she lent J.G. money so that he could buy a gun. She had seen him with a gun. He had once left the gun around and a client had picked it up. She later chastised J.G. for leaving the gun.
[46] According to the complainant, she was to spend a set time with each client. J.G. timed the time she spent with clients and got frustrated when she spent too much time with them. He would get frustrated and pinch her.
[47] She said J.G. encouraged her to drop out of summer school and focus on the sex trade. He told her she will make more money. She said she and J.G. used a trap phone, the broken white iPhone, to communicate with clients. She said J.G. initially gave her control of this phone. J.G. did not like the way she handled it so he took it back.
[48] According to the complainant J.G. knew her age. He told her not to tell clients her age and to say she was 20 years old. She said J.G. told her that stripping when she turned 18 years will be better and had suggested that when she turned 18 years they should move to Calgary so that she could strip.
[49] I conclude that on June 27, 2018, the complainant and J.G.spent their time together getting acquainted. They discussed the content of the advertisements. This included selecting the pictures to be used and how the proceeds of the sex trade will be managed..
June 28, 2018
[50] The first sex advertisement was placed on June 28, 2018. On that date, 12 advertisements were placed. On June 28, 2018, the complainant’s first sex trade client answered an advertisement. On June 28, 2018, there was no text communication between the complainant and her mother.
[51] I have no basis to dispute the complainant’s assertion that the sex trade was difficult for her or that she had to develop a personality called “Molly” in order to cope. However, I do not accept that she began this against her will. It is apparent that it was not what she expected, and I have no basis to conclude that she was not traumatized from the experience. In fact, the descriptions of her state of mind after July 22, 2018, her subsequent breakdown, hospitalization and counselling leads to the only reasonable conclusion that she was traumatized by the experience. It was not what she had expected.
June 29, 2019
[52] Two advertisements were released on this day on June 29, 2018. On the same day, she had a text conversation with her mother from which it is plain and obvious, that the animosity between mom and daughter from June 27, 2018 was over. The complainant did not sleep at home on June 28, 2018. She lied to her mother and implied she had slept over at her friend T’s house. She asked to sleep over again on June 29, 2018 night, promising to be home in the morning. Her mother agreed.
June 30, 2018
[53] No ads on June 30, 2018. On the same date, the complainant’s mother sent her a text telling her an insurance payment was due; told her that Portugal had lost a (world cup match) and requested that the complainant return home by 1:00 a.m. The complainant gave her mother the impression that she was at work when she was not. She requested to go to T’s house after work. She arrived home in the very early hours of July 1, 2018 and slept in her mother’s house on that day.
July 1, 2018
[54] No Leo List ad was placed on July 1, 2018. The complainant was not with J.G. that day. Text messages from her phone indicate that she sought out J.G. that day. She explained that she was lonely.
July 2 - 6, 2018
[55] There were no Leo List ads from July 2 to 6, 2018. Text communications between the complainant and her mother indicate that the complainant was not home. She said she was either visiting and sleeping over at her friend K’s house. She had conversations with her mother about attending school. Text messages, on July 3, 2018, confirm her testimony that after spending time with friends she arranged for J.G. and B.L. to pick her and M.P. up from the Erin Mills station in the evening. There was no sex trade ad on July 4, 2018, and no indication of any sex trade activity by the complainant.
[56] On July 5th, 2018, the complainant sent her mother a text asking whether she could babysit M.P.’s daughter S. at her mother's house. Her mother agreed. The complainant baby sat S. The complainant’s mother was unimpressed with M.P. because she was late in picking up her daughter S.
[57] On July 6th the complainant, via text message, asked her mother if she could spend time with M.P. after school. Mother agreed. In a text message dated July 7th, 2018, the complainant’s mother asked her not to be late for work. It is clear, that during this six-day period the complainant and her mother were getting along. There was no sex trade work during this period.
[58] On this day, text messages between J.G. and the complainant indicate that they agreed the complainant will pick him up after she finished school on July 7th 2018. They exchanged addresses. Later that evening the complainant told J.G. to call T. She complained that M.P. kept calling her.
July 7, 2018
[59] On July 7th, 2018, a Leo List ad was posted. The text conversation between the complainant and her mother shows that she gave her mother the impression that she was working that day. Text messages indicate that the complainant was at Motel 6 on July 7th and 8th, 2018.
July 8, 2018
[60] On July 8th, 2018, two Leo List ads were posted. The messages exchanged between the complainant and her mother illustrate how she deceived her mother on days she was engaged in sex trade work. She first gave her mother the impression that she was going to work. She said she was with her friend and was going to get a bite to eat with a friend. She told her mother she would come home after spending time with her friend. As the evening progressed she eventually asked her mother if she could sleep over and then go straight to school the next morning. Her mother was not agreeable and asked her to come home right after school. During this time, she was working in the sex trade.
July 9, 2018
[61] A Leo List ad was posted on July 9th, 2018. In a text of the same date, the complainant’s mother inquired if she had gone to school. She told the complainant the frequent sleepovers had to end, and she was to continue going to school. The complainant had told her she dropped the summer course and planned to take it in September.
[62] At 2:38 p.m., the complainant’s mother sent a text to her which is illustrative of her frustration and the fact that the complainant had become a pathological liar. In an excerpt her mother wrote:
you wanna deal with that in September ?? Then what is your excuse you have more time ???? .. You know you full of shit and you always have an excuse for everything .. I don't like your mentality and where you are heading and these new friends you have it's bad news.
[63] Her mother was clearly frustrated and whether you agree with her parenting style or not , the complainant was reneging from a plan to take a summer course as part of her plan to gain admission into the Master of Social Work program at the University of Western Ontario. She had become a pathological liar in order to continue her work in the sex trade. Though her mother was unaware of what she was doing, the parental frustration was reasonable in all the circumstances.
[64] But then this text sent by her mother illustrates racist and stereotypical thinking. She wrote to her daughter:
You are slacking too much and getting way too lazy and doing less and less just like a typical black person .... Lazy as shit.
[65] It is apparent that her mother had made assumptions based on myths, stereotypes and prejudices. The Oxford English Dictionary defines a myth as “a widely held but false belief” and stereotype as “ an image or idea of a particular type of person or thing that has become fixed through being widely held” and prejudice as “ preconceived opinion that is not based on reason or actual experience. Unjust behaviour formed on such a basis”.
[66] In his defence J.G. argues that racism is a motivation for the complainant’s allegations. The complainant and her parents are white. J.G. , B. L., M.P., are black. The defence theory is she has made false allegations against these persons because she knows her mother is racist.
[67] Such racist thinking contributes to systemic racism in society. “By systemic racism we mean the social production of racial inequality in decisions about people and in the treatment they receive”: Report of the Commission of Systemic Racism in the Ontario Criminal Justice System, at p.39.
[68] As the trier of fact, I instruct myself to be alert to the dangers of relying on conscious or subconscious prejudices and bias, racist or otherwise, in assessing the evidence. This includes stereotypes about how genuine victims of sexual assault or exploitation are expected to act. These beliefs are falsehoods not based on fact. I instruct myself to be alert to the danger of filling evidentiary gaps by engaging in evidentiary assessment based on conscious or subconscious stereotypical beliefs. Failure to do so, will violate the principle of impartiality, result in an unfair trial, perpetuate systemic racism and result in a miscarriage of justice.
[69] In an understandable quest to explain the new and troubling behaviour of her daughter, her mother unfortunately embraced an explanation based on racist beliefs. Therefore, I approach the complainant’s mother’s evidence with caution.
July 10, 2018
[70] One Leo List ad was posted on July 10, 2018. The complainant continued her deceit. She first told her mother she was at a “nail place”, eventually asking to sleep over at T’s house. In exasperation, her mother told her she will pack the complainant’s things and put them in the backyard. She effectively kicked her out. In her testimony, the complainant’s mother said she did not really want her to move out. She was hoping that this action will change her behaviour. Her subsequent text messages to the complainant on July 11, 2018, support this assertion.
July 11, 2018
[71] On July 11th, 2018, a Leo List ad was posted. In a text message of the same date, the complainant’s mother invited her to return home under certain conditions. She did not respond to this text message. The complainant testified that she had demanded additional money from a client who had broken the rules and ejaculated in her. The complainant’s banking records confirm this. Showing an e- transfer of $550.00
July 12, 2018
[72] On July 12, 2018, a Leo List ad was posted. The complainant's mother sent her a message telling her that school had called, and a library book had to be returned. The complainant responded, writing that she would be going to the school the next day.
July 13 - 14, 2018
[73] On July 13, 2018, no Leo List ad was posted. On July 14, 2018 three Leo List ads were posted. The complainant did not respond to her mother's text of July 12, 2018, inviting her to return home.
July 15 to 20, 2018
[74] On July 15, 2018, three Leo List ads were posted. On July 16 – one; July 17 – two; July 18 – three; July 19 – two, and July 20, 2018 – two. The complainant’s mother sent a message inquiring why she had not responded to her July 12, 2018 text message. She exchanged text messages with her mother. The complainant’s mother aired her grievances about the complainant’s behaviour. The complainant pointed out that her mother was inflexible and announced that she had decided to get her own place. Her mother kicked her out again and then retreated pleading with her to come home. Her mother said they were all afraid for her safety.
[75] The complainant’s mother’s messages ranged from anger, frustration, concern to panic and fear. The following text message excerpts are illustrative of the fact that the complainant’s mother clung to racist beliefs to explain her daughter’s behaviour. This excerpt from a text exchange between the complainant and her mother confirms my earlier conclusion that she was doing what she wanted to do and did not participate in sex trade work against her will.
[76] Her mother wrote:
M !!! Please come home we are all afraid for your safety we will get help and start from scratch get you on the right path I am worried sick and want you back to Your normal self. These black people you are involved with are dangerous and have a bad rap you're going to get yourself in trouble. I'll keep you safe. Please M. Do the right thing forget these people and you can go to a new school you almost at the end you're ruining it all by doing this your friends family are concerned about you you are putting yourself in danger you don't see it you are being used and brainwashed by bad people!!!!!!! don't be fooled and naive M . Listen to your mother I am asking you to stop this craziness and stop this bender you are on and choose a healthier path be strong and make healthier decisions I'm worried about your safety we all are …..
[77] Her response:
Why are you talking bout black ppl I have friends of different races too ... and idk why you’re thinking that other ppl are making me do this and that other ppl are supporting what I'm doing back no one is this is a choice that I made last time I checked the day I left u said I want me gone ASAP how many times do you say I can't wait for everyone to be out of the house so I left bc why would I want to stay with u if you if I'm just a hassle... yes I'm safe don't worry I've been safe and idk who Dayna feels like bc she's been telling me lies and I caught her and I'm upset with her rn too….
[78] On July 16, 2018, extracted data from Phone #1, shows that B.L. made a Leo List purchase on July 16th at 10:31 p.m. The complainant said she had no knowledge of B.L. getting money or posting an ad.
[79] Exhibit 5 is a hotel document from Super 8 on Steeles Avenue in Vaughan, covering the dates July 18 to 22, 2018. The document is in B.L.’s name. The complainant was involved in sex trade work at the hotel from July 18 to 22, 2018. Page 3 of the document shows that at 7:39 p.m. B.L. paid $216.93. The banking records for the complainant show that the money actually came from the complainant’s account. I find that B.L. booked the hotel room for the complainant’s sex trade work over that period and paid for the room from her bank account.
July 21 - 22, 2018
[80] On July 21, 2018, no Leo List ads were posted. On July 22, 2018, two Leo List ads were posted. On July 22, 2018, the complainant’s mother and father told Constable Irwin that her mother and her partner C. had located a Leo List ad for sex services provided by the complainant. They wanted police intervention to bring her home.
[81] On the same date, Constable Irwin answered a Leo list ad and arranged for sexual services from the complainant. He and his partner went to the Motel 6 where she was located. They identified themselves as police officers. Told her that her parents had reported her missing and they just wanted to make sure she was safe. They told the complainant that they had information that she was involved in the sex trade. She told Constable Irwin that she was independent, and she kept all the proceeds from the trade for herself. This contradicts what she told the court which was that she was under J.G.’s control and that she split the proceeds equally with J.G. I have concluded that she did not tell Constable Irwin the truth when she said she was independent and kept all the proceeds of her sex trade work.
[82] Constable Irwin encouraged her to call her mother. She refused. Instead she said she would call an uber and go to her friend K’s house. Her reaction was consistent with her response to her mother’s invitation to return home via text message. She packed up her belongings and left the motel room.
[83] Constable Irwin watched her enter an uber presumably to go to her friend K’s house. He informed her mother that he made contact with her but had to let her go. The complainant’s mother was furious. She persisted in reaching out to the complainant, this culminated in a meeting with the complainant in a nearby Tim Horton’s restaurant . The complainant’s father J.W. was present. By then, the complainant had been picked up by a friend of J.G. on route to an unspecified destination. On route, she asked the friend to take her to Tim Hortons for the meeting. At the meeting, the complainant’s parents persuaded her to return to her mother’s house.
[84] The complainant continued to try to reach J.G. while at her mother's house. This prompted her mother to confiscate her phone. Her father J.W. took her on a trip to Nova Scotia a few days later. This in effect ended the complainant’s contact with J.G.
[85] The complainant had several opportunities to return home and live with her mother but chose not to. She had an opportunity to report her allegations to the police and did not do so.
[86] In addition, on a number of occasions, she actively sought out J.G. There are text messages illustrating this on her phone: Exhibit 12 (phone 4). She explained that there were times when she was lonely, and she would seek him out.
[87] On July 22, 2018, Constable Irwin watched her get into an uber presumably to travel to her friend K’ s house. Somehow, she ended up in a vehicle driven by J.G.’s friend. She said after the police came she spoke to J.G. and J.G.’s friend had picked her up on his instructions. The complainant did not heed police encouragement to call her mother or return to her mother’s home. She elected to return to J.G. instead.
[88] Counsel submits that her failure to report the allegations at her first opportunity and her intent to reunite with J.G. after her encounter with the police indicates that she was fully engaged in the sex trade without J.G.’s exploitation or compulsion. This argument relies on two of several myths about how genuine sexual assault complainants are expected to behave. In this case, the myths engaged are that genuine complainants report their allegations at the earliest opportunity and second, avoid the perpetrator after the offence.
[89] Contemporary Canadian law has come to understand, recognize and denounce the dangers of erroneous reasoning based on myths and stereotypes in sexual assault law: R. v. Find, 2001 SCC 32, at para 101. While J.G. and B.L. are not charged with sexual assault, the crux of the charges they face is that they overcame the will of the complainant causing her to engage in the sex trade against her will. Thus, these charges can attract prohibited stereotypical thinking on how a genuine complainant is expected to react.
[90] There is no rule on how sexual assault victims and for that matter victims of sex crimes will react. Some may report immediately, others may delay, and others may never report the incident. It is dangerous to rely on this as the sole determinant of a complainant’s credibility: In R. v. D.D., 2000 SCC 46, at para. 65 the Supreme Court observed:
there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, should not give rise to an adverse inference against the credibility of the complainant.
[91] In R. v. Caesar, 2015 NWTCA 4, at para. 6 , the Northwest Territories Court of Appeal observed:
Assumptions about complainants and their behaviour in particular circumstances have plagued the law of sexual assault for generations. The Criminal Code now negates the relevance of many of them. There was a time when it was often assumed that a complainant who had really been sexually assaulted, would report the assault immediately, and would thereafter not associate with the perpetrator.
[92] I note that the defence is not inviting the Court to rely on the complainant’s late disclosure and desire to reconnect with J.G.as the sole basis to reject her testimony. They invite the court to also consider what they assert are several inconsistencies in her testimony.
POSITION OF THE PARTIES
The Crown
[93] The complainant testified in a forthright, reliable, patient, and believable manner. Her memory about dates and some details were challenged at trial, however, she recalls the main events and experiences that made a lasting impression on her.
[94] Sometimes she misspoke, or omitted information, or struggled to acknowledge painful moments that had occurred, and had late memories, however, her testimony was consistent and her explanations of her past perspectives and experiences were reasonable and have the ring of truth.
[95] She was consistent how M.P., J.G. and B.L. affected her life. She was consistent about her unwillingness to enter the sex trade work at any time. She explained how she quickly found herself lost in a disorientating and disconnected world. J.G. quickly consumed and controlled her. Soon he was all she knew. J.G.’s domination was mostly psychological. B.L. was his quiet enforcer. She explained how she was immediately transformed by the first unwanted sex trade encounter with the first client. It was difficult for her to relive her experiences. In the context of all the evidence, any challenge to the complainant’s evidence, does not, individually, nor collectively, undermine her genuine credibility.
J.G.
[96] The complainant was a rebellious teenage runaway and voluntarily entered the sex trade. She feigned emotional distress when confronted with inconsistencies with her testimony. The Crown relied extensively on documentary evidence to rehabilitate her recollections and account of the events. She is not credible, and her evidence should be rejected in its entirety.
[97] The Crown’s case rests solely on her testimony. Any relevant external evidence only corroborates aspects of her story that are not contentious, neutral, or detrimental to J.G.
[98] The complainant feigned memory loss, perjured herself, provided narrative guided by external evidence; created the personality of “Molly” in an effort to deflect a critical examination of her credibility in the face of her shifting narrative.
[99] The complainant’s testimony produced at least 87 inconsistencies. Text messages between her and J.G. do not support a conclusion of control or exploitation by J.G. Overall, her evidence should be rejected and J.G. acquitted of all the charges against him.
B.L.
[100] The complainant lied. Her misleading evidence should be rejected in its entirety. She is a incredible witness and her testimony is not corroborated by any other witness or independent evidence.
[101] The complainant described B.L. as the primary driver, however, revealed that on occasion, Uber drivers, Chinaman and some one called Guy#1 also drove she and J.G. She could not provide details of B.L.’s driving.
[102] Pictures taken of the complainant shortly after the alleged assault by B.L. do not show any injuries on any of her eyes. There is no evidence that B.L. used the firearm in an intimidating manner. In fact, the complainant testified that she had to calm B.L. down because he was freaked out about the firearm.
[103] The complainant’s allegation of B.L. assaulting her is false. It did not happen. B.L. did not have sex with her. Her evidence should be rejected in its entirety and B.L. should be acquitted of all charges.
OVERALL CONCLUSIONS
[104] The complainant is the main witness against the defendants. She has a likable, bright, friendly and charismatic persona. She has loving and concerned parents. She has excellent interpersonal skills and her experience in the sex trade has caused her yet unquantified trauma, however, she has been dishonest as to how and why she began work in the sex trade. Therefore, I approach her evidence with caution.
[105] I have concluded that the complainant entered the sex trade willingly. The complainant entered the sext trade with the assistance of her friend M.P. I do not accept the complainant’s explanation of how and why this happened. How and why this happened is unclear.
[106] J.G. and the complainant worked together in this enterprise. J.G.’s role was to manage her sex trade work. J.G. arranged for clients to attend. The complainant performed the work. They agreed on how the proceeds will be split. B.L. assisted J.G. with his management of the enterprise albeit he played a more peripheral role. The question is whether the Crown has proved each essential element of each offence beyond a reasonable doubt.
OFFENCES
[107] The allegations cover the period July 1st, 2018 to July 31st, 2018 in the City of Brampton.
Count #1
[108] J.G. is charged with Human Trafficking in relation to the complainant, a person under 18 years, contrary to subsection 279.011 of the Criminal Code.
[109] The offence involves an interplay between s. 279.011 and subsection 279.04 of the Criminal Code. Subsection 279.011 stipulates the prohibited conduct, the target group and the prohibited purpose which is exploitation. Subsection 279.04 defines exploitation.
[110] Subsection 279.011 of the Criminal Code states:
279.011 (1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person under the age of eighteen years, or exercises control, direction or influence over the movements of a person under the age of eighteen years, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence ……..
(2) No consent to the activity that forms the subject-matter of a charge under subsubsection (1) is valid.
[111] The Crown must prove beyond a reasonable doubt:
that J.G.intended to engage in any of the conduct described in s. 279.011 in relation to the complainant;
that he knew complainant belonged to the prohibited group i.e. is a person under 18 years old;
the purpose of his conduct was to exploit the complainant as described in s. 279.04 of the Criminal Code: R. v. A.A., 2015 ONCA 558, 327 C.C.C(3d) 377, at paras. 79, 82. R. v. Gallone, 2019 ONCA 663, [2019] O.J. No. 4247.
[112] Subsection 279.04(1) defines exploitation as:
279.04 (1) For the purposes of subsections 279.01 to 279.03, a person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.
(2) In determining whether an accused exploits another person under subsection (1), the Court may consider, among other factors, whether the accused
(a) used or threatened to use force or another form of coercion;
(b) used deception; or
(c) abused a position of trust, power or authority
(3) For the purposes of subsections 279.01 to 279.03, a person exploits another person if they cause them, by means of deception or the use or threat of force or of any other form of coercion, to have an organ or tissue removed.
[113] Justice Watt in A.A. at para 70, explains the 279.04 Exploitation analysis as follows:
Subsection 279.04 instructs us that one person exploits another if they cause that other person to provide labour by doing something that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide the labour. On a straight-up reading of this definition of exploitation, three conclusions emerge:
(i) The expectation of the specific belief engendered by the accused’s conduct must be reasonable, thus introducing an objective element;
(ii) The determination of the expectation is to be made on the basis of all the
circumstances; and
(iii) The person’s safety need not actually be threatened.
In essence, for there to be exploitation, an accused’s conduct must give rise to a reasonable expectation of a particular state of mind in the victim.
[114] The complainant was untruthful about how she entered the sex trade. Her friend was M.P. whose boyfriend was B.L. She said she met J.G. on June 27, 2018 and they got acquainted. Data extracted from cell phones found in J.G’s possession contain communications and images that confirm that J.G. and the complainant were acquainted. The complainant’s sex trade work was advertised on Leo List. These advertisements contained nude pictures of the complainant.
[115] The messages also show that J.G. questioned the complainant about the length of time she spent with a client. There is evidence that J.G. had a gun and the complainant knew it. Neither J.G. or B.L. ever threatened the complainant with the gun. J.G. did not instruct B.L. to intimidate the complainant with a gun. In fact, the complainant found the whole issue of the gun amusing. She had to calm B.L. down when he seemed freaked out over cleaning J.G.’s gun. On one occasion J.G. left the gun in plain sight and a sex trade client picked it up and examined it.
[116] The only reasonable inference is that the purpose of the gun was not to intimidate the complainant, rather it was used by J.G. as part of his protection of the complainant when she engaged in sex trade work. He was not very good at this endeavour as exemplified by the occasion when he left the gun laying around for a sex trade client to pick up and examine.
[117] There are text messages that show that on July 6, 2018, the night before some Leo List ads were posted, the complainant and J.G. made arrangements to meet. On July 7, 2018, the complainant was engaged in sex trade work and her mother could not reach her.
[118] The complainant’s mother testified that the complainant’s participation in summer school was to help her gain credits to gain admission to a social work program at the University of Western Ontario. In text messages, over the period July 7 to 10, 2018, J.G. and the complainant arranged to meet, and the complainant told her mother that she was dropping out of summer school. It is apparent from the number and frequency of Leo List ads that summer school was interfering with sex trade work. The timing of dropping out of school provides some credence to the complainant’s testimony that J.G. persuaded her to drop out of summer school.
[119] I am not prepared to accept that dropping out of summer school was entirely J.G.’s idea. The only reasonable inference from the evidence is that summer school was interfering with the sex trade work. The complainant and J.G. discussed it and J.G.’s input was important. The complainant was not adverse to quitting summer school.
[120] The text messages indicate that the complainant was reliant on J.G. reaching out to him when she was alone. Reaching out to him after the police came. J.G.’s friend picked her up after the encounter with the police and after the police saw her enter and uber. When J.G. was arrested he was in possession of phones with extracted data showing pornographic images of the complainant; images of her engaged in sexual acts; the Leo List ads; communications with sex clients and communications between him and the complainant. J.G. was in possession of phone data which when pieced together chronicled the complainant’s work in the sex trade in a significant way. The complainant’s Cineplex work uniform was found in J.G’s house.
[121] J.G. was in possession of one of the central hubs of the sex trade operations. The communication centre. This fact when viewed in the context of all of the circumstances, leads to the only reasonable conclusion that the complainant’s allegations of J.G.’s active involvement in her sex trade work is accurate. Though her portrayal of herself as an unwilling participant is untrue. In all the circumstances, it is unreasonable to conclude that he put in all the time and effort in this enterprise for no renumeration. The only reasonable inference is that he was remunerated for his efforts. I accept the complainant’s evidence on this point.
[122] The complainant alleged that J.G. pinched her occasionally. Her mother said she saw bruises on her body while giving the complainant a bath on July 22, 2018. Her parents described the complainant as looking unhealthy and out of it when they saw her on July 22, 2018.
[123] Constable Irwin said when he spoke to the complainant, she looked healthy and did not look under the influence of any substance. He saw no marks on her body. I expect the complainant’s parents to be understandably emotionally invested in the wellbeing of the complainant and thus less objective. I have already expressed concerns about her mother’s credibility. I prefer the testimony of Constable Irwin and conclude that the complainant was in good health and J.G. did not pinch her.
[124] The complainant testified that as result of a comment she made B.L. punched her in her eye. She was unsure which eye that was. The complainant’s mother testified that she saw the bruise on the complainant’s eye around the time she was home babysitting M.P.’s daughter. I have expressed my concerns with her credibility. I am concerned she will rely on racial bias to fill in gaps in the evidence. The timeline is before July 1, 2018. By that date the complainant was home with her mother and she babysat M.P.’s child on July 5th, 2018.
[125] The complainant agreed that the injury was not visible in a picture taken shortly after the alleged assault. She had difficulty pointing out the injury in the picture. I cannot see any injury either. In the result, I am left in a reasonable doubt as to whether B.L. punched the complainant in the eye. The Crown relied on this piece of evidence of the alleged physical and psychological domination of J.G. over the complainant because of her assertion that despite this he made her have sex with B.L.
[126] My concerns about the complainant’s credibility leave me in a reasonable doubt on whether the complainant had sex with B.L. and even if this happened, whether it was on the instructions of J.G. This could have happened however my concerns about her credibility are such that I cannot be satisfied beyond a reasonable doubt.
[127] The cumulative effect of all of this evidence and an assessment of all of the circumstances leads me to conclude that the only reasonable inference to draw is that is J.G. had influence over the complainant’s movements in her sex trade work. He collaborated with her on advertisement content and pricing. In addition, I accept the complainant’s evidence that J.G. knew she was attending summer school. They discussed the impact of school on the sex trade work.
[128] The advertisements referred to the complainant’s age as 20 years even though she was 17 years old, absent fanciful speculation, the only reasonable inference is that despite the complainant’s equivocation on whether she told J.G. her age, she and J.G. discussed her age and her sex trade name, he knew her age and she suggested the name Molly and he agreed and they decided to list her age as 20.
[129] The complainant was J.G.’s partner in the sex trade enterprise however, he did not cause the complainant to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause her to believe that her safety or the safety of a person known to her would be threatened if she failed to provide, or offer to provide, the labour or service. Therefore, the Crown has failed to prove this offence beyond a reasonable doubt, and he is found not guilty.
Count #2
[130] Obtaining a material benefit for trafficking – contrary to subsection 279.02(2) of the Criminal Code.
[131] Subsection 279.02(2) states:
Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsubsection 279.011(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of two years.
[132] The Crown must prove beyond a reasonable doubt that J.G. obtained a material benefit knowing that it was obtained by or derived directly or indirectly from the commission of an offence under subsection 279.011(1) of the Criminal Code. I have acquitted J.G. of the offence described in subsection 279.011(1) of the Criminal Code. There is no evidence that he obtained a material benefit derived from the commission of a subsection 279.011(1) offence, Therefore, the Crown has failed to prove this offence beyond a reasonable doubt and J.G. is found not guilty of this charge.
Count # 3
[133] J.G.and B.L. are charged that they did procure or recruit a person under 18 years for the purpose of facilitating an offence under subsection 286.1(2) to offer or provide sexual services for consideration contrary to subsection 286.3(2) of the Criminal Code.
[134] Subsection 286.1(2) makes offering sexual services for consideration an offence. The subsection states:
Everyone who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person under the age of 18 years is guilty of an indictable offence ….
[135] 286.3(2) makes procuring or recruiting a person under 18 years an offence:
(2) Everyone who procures a person under the age of 18 years to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsubsection 286.1(2), recruits, holds, conceals or harbours a person under the age of 18 who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of five years.
[136] Count 3 charges J.G. and B.L. with engaging in the prohibited conduct of procuring or recruiting the complainant a person under 18 years of age. I consider procure or recruit at this stage because of the way the charge is worded. Therefore, the Crown must prove beyond a reasonable doubt that J.G./B.L.:
Intended to procure or recruit the complainant to offer or provide sexual services for consideration; and
J.G./B.L. knew complainant was a person under 18 years of age.
[137] The words “procure” and “ recruit” are given their ordinary meaning and considered disjunctively: Gallone, para. 69.
[138] The evidence against each of J.G. and B.L. is considered separately. I accept the complainant’s testimony that B.L. drove a vehicle with M.P., J.G. and the complainant to a motel on June 27, 2018, however, I have previously articulated why I conclude that complainant was a voluntary participant in sex trade. I have a reasonable doubt as to whether she participated on her own accord or whether she was recruited or procured to do so. For the same reasons as previously articulated, I am left in a reasonable doubt as to whether either J.G. or B.L. procured or recruited the complainant to participate in the sex trade. J.G. is found not guilty. B.L. is found not guilty.
Count #4
[139] J.G. and B.L. are jointly charged that for the purpose of facilitating an offence under subsection 286.1(2) did hold, conceal or harbour the complainant a person under the age of 18 who offers or provides sexual services for consideration, or exercised control, direction or influence over the movements of the complainant a person under 18 years of age to offer or provide sexual services for consideration contrary to subsection 286.3(2) of the Criminal Code.
[140] The Crown must prove beyond a reasonable doubt that J.G./B.L.:
Intended to hold, conceal or harbour the complainant to provide sexual services for consideration, or exercise control, direction or influence over the movements of the complainant to offer or provide sexual services for consideration.
That J.G./B.L. knew that the complainant was a person under 18 years old.
[141] Each description of the prohibited conduct in subsection 286.3(2) should be considered disjunctively: Gallone, para. 69. For reasons previously articulated, I conclude that there is no air of reality to the allegation that either defendant engaged in the prohibited conduct of hold or conceal or harbour the complainant.
[142] I consider the prohibited conduct of exercise control, direction or influence. The elements of this conduct are defined in R. v. Antoine, 2019 ONSC 3843, 2019 OJ No 3325, at 30 as follows:
Control: The element of control refers to invasive behaviour, to ascendancy which leaves little choice to the person controlled. This therefore includes acts of direction and influence.
Direction: There is the exercise of direction over the movements of a person when rules or behaviours are imposed. The exercise of direction does not exclude the person being directed to having a certain latitude or margin for initiative.
Influence: The exercise of influence includes less constricting actions. Any action exercised over a person with a view of aiding, abetting or compelling that person to engage in or carry on prostitution would be considered influence.
[143] The complainant willingly travelled with B.L., M.P. and J.G. to the hotel on June 27 2018. B.L. was the driver. He may have gone to the front desk, but he did not enter the hotel room. B.L. on occasion drove the complainant and J.G. to her sex trade work appointments, however he was not necessarily the primary driver. There is evidence that B.L. booked a hotel room for the complainant’s use for sex trade work, however, the money to pay for the room came from the complainant. B.L. did not intimidate the complainant in any way. I have a reasonable doubt as to whether he hit or had sex with her. In considering all the circumstances, I am left with a strong suspicion but in a state of reasonable doubt that B.L. participated in any of the prohibited conduct described in subsection 286.3(2). B.L. is found not guilty.
[144] I have previously articulated my findings on J.G.’s role. I have rejected the complainant’s evidence that he pinched her, forced her to enter the sex trade or to have sex with B.L.
[145] He was the complainant’s partner in the sex trade enterprise. He had possession of and controlled the communications hub of the sex trade operation i.e. the cellphones. Though the complainant also participated in these activities, he prepared the ad content, communicated with the clientele, arranged pricing and accompanied the complainant to the sex trade locations on most occasions.
[146] He was the person the complainant turned to for advice on sex trade related matters, for example, whether she should drop out of summer school, what to do after the police came to the motel on July 22, 2018, whether she should continue working at the movie theatre. Any advice he gave her was to encourage her to remain in the sex trade work. I accept the complainant’s testimony that he pointed out to her how much more money she could make in the sex trade versus working at her job at the movie theatre. He was in the possession of a weapon not to intimidate but rather to protect the complainant in her sex trade work.
[147] Upon an assessment of all of the evidence, the only reasonable inference to be drawn is that J.G. encouraged and aided the complainant in the sex trade work. They were a team. I am satisfied beyond a reasonable doubt that J.G. influenced the complainant’s movements to facilitate her providing sexual services for consideration, contrary to subsection 286.3(2) of the Criminal Code.
[148] For reasons previously articulated, I am satisfied beyond a reasonable doubt that J.G. knew that the complainant was under 18 years old. J.G. is found guilty of count #4
Count #5
[149] J.G. is charged with advertising sexual services offered by the complainant contrary to subsection 286.4 of the Criminal Code.
[150] Subsection 286.4 states:
Everyone who knowingly advertises an offer to provide sexual services for consideration is guilty of….
[151] The Crown must proof beyond a reasonable doubt that J.G:
J.G. intended to advertise the offer;
J.G. knew the offer was to provide sexual services for consideration
[152] For reasons previously articulated, I am satisfied beyond a reasonable doubt that J.G. with input from the complainant, prepared and posted the Leo List ads advertising sexual services offered by the complainant. His intent and knowledge were clear. Therefore, J.G. is found guilty of count 5.
Count #6
[153] J.G. is charged with receiving a material benefit, knowing that it was derived directly or indirectly from the commission of a subsection 286.1(2) offence contrary to subsection 286.2(2) of the Criminal Code.
[154] Subsection 286.2 (2) states:
Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(2), is guilty….
[155] The Crown must prove beyond a reasonable doubt that J.G. derived a financial or other material benefit knowing that it was derived directly or indirectly from the commission of an offence under subsection 286.1(2).
[156] For reasons previously articulated, though I have rejected the complainant’s evidence that she was an unwilling participant in the sex trade, I have accepted her evidence on J.G.’s role in the modii operandi of the sex trade enterprise and find that he helped her carry out her sex trade work. The Crown has proved the essential elements of this offence beyond a reasonable doubt and J.G. is found guilty of this offence.
Count #7 and #8
[157] Count 7 charges J.G. with possessing child pornography. Count 8 charges J.G. with distributing child pornography.
[158] Subsection 163.1(4) states:
Every person who possesses any child pornography is guilty of…
[159] Subsection 163.1(3) states:
Every person who transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising or exportation any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.
[160] It is not disputed that the phones in J.G.’s possession contained data which constituted child pornography. For example, the Leo List ads featured pictures of the complainant which constitute child pornography. The ads were created by J.G. He posted them advertising the complainant’s sex trade services. By so doing he distributed them. J.G. was also aware that the complainant was under 18 years of age at the time. I am satisfied that it has been proven beyond a reasonable doubt that J.G. was in possession of child pornography and distributed child pornography. J.G. is found guilty of count 7 and count 8.
Count #10
[161] B.L. is charged with unlawfully assaulting the complainant contrary to subsection 266 of the Criminal Code. The elements of the offence are set out in sub section 265 of the Criminal Code.
[162] For reasons previously articulated, I am left in a state of reasonable doubt on whether B.L. struck the complainant in the eye as she alleged. Therefore, B.L. is found not guilty of count 10.
Barnes J.
Released: November 17, 2020
COURT FILE NO.: CR-19-1903
DATE: 2020 11 17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
J.G. and B.L.
REASONS FOR JUDGMENT
Barnes J.
Released: November 17, 2020